AC-2023-LON-002285 - [2024] EWHC 1094 (Admin)

This is a claim for judicial review of two decisions of the Service Complaints Ombudsman for the Armed Forces (“the SCOAF or “the Ombudsman”) under Part 14A of the Armed Forces Act 2006 (“the AFA 2006”) and Regulation 7(2) of the Armed Forces (Services Complaints) Regulations 2015 (“the 2015 Regulations”), namely:

The principal issue which arises is whether the Ombudsman acted lawfully in rejecting the Claimant’s application for review. Regulation 7(2) identifies that the Ombudsman must not consider an application made outside the four week time period “unless the Ombudsman considers it just and equitable to allow the complainant to apply after that period.” The Claimant argues that in considering whether to exercise that discretion, the Ombudsman acted irrationally in not taking into account the merits of the Claimant’s underlying service complaint. By contrast, the SCOAF and the Ministry of Defence submit that the terms of Regulation 7(2) mean that the Ombudsman was not entitled to take into account any consideration of the merits of the service complaint.

By Claim Form of 26 September 2023 the Claimant originally advanced three grounds of challenge to the Ombudsman’s decisions:

The Defendant resisted the claim for reasons set out in her Summary Grounds of Defence.

Permission to bring the claim was granted by the Hon. Mr Justice Calver by Order dated 31 October 2023. The Judge also granted the Claimant anonymity. The terms of that anonymity order prohibiting the publication of the Claimant’s name, or any information liable to lead to his identification in connection with these proceedings, and making other provision for preservation of that anonymity, remain in force.

The Defendant provided notification that her Summary Grounds of Defence should stand as her Detailed Grounds of Defence (as permitted by paragraph 1 of the Order of Calver J). The Ministry of Defence, the Interested Party, submitted its own Detailed Grounds of Defence supporting the Defendant’s interpretation of Regulation 7(2) of the 2015 Regulations.

By Application Notice dated 12 January 2024, the Claimant applied to rely on a witness statement. This was unopposed by the other parties. Permission to admit the statement was granted by Order of Sir Duncan Ouseley (sitting as a High Court Judge) dated 23 January 2024.

The Claimant had made various requests for disclosure from the SCOAF of material relating to the decisions in light of the Defendant’s duty of candour. These requests began with in the Claimant’s pre-action protocol letter before claim dated 19 September 2023, and continued into January 2024. They included a request for disclosure of any records relating to a telephone call between someone from SCOAF and the Claimant shortly after he had submitted his request for a review. No disclosure was provided by the Defendant until 19 January 2024 and then later on 26 January 2024. The first disclosure was provided on the date the Claimant’s skeleton argument for the substantive hearing was due. He submitted a Note to deal with its content on 20 February 2024.

There was then a flurry of activity shortly before the hearing of the substantive claim including:

Needless to say, this flurry of activity before and at the start of the substantive hearing of the claim was very unfortunate. Such activity at a late stage is contrary to the basic objectives of the directions in place which provide for an effective and efficient hearing of the substantive claim. Such directions are intended to ensure the provision of structured and considered arguments on identified issues in advance of the hearing, so that the hearing itself can then focus on the grounds for which permission was granted. It is regrettable the Defendant did not provide disclosure of documents until 19 January 2024 as part of its duty of candour. This lateness has, in no small part, been a significant contributor to the recent activity.

Despite these difficulties, I have considered all material and arguments advanced in an effort to address the issues raised in the claim. At the substantive hearing, the Claimant was represented by Nicola Braganza KC, the Defendant by Robert Cohen and the Interested Party by Jack Castle both of Counsel. I am very grateful to all of them for the clarity and helpfulness of both their written and oral submissions.

In advance of that hearing, the Claimant had invited the Defendant to adopt what the Claimant considered would be “a proportionate and reasonable response” to the claim in order to save time and costs: the Claimant made a request dated 5 January 2024 for the Defendant to agree to reconsider the decision to refuse to consider his request for a review of the admissibility decision in light of all the circumstances. The Defendant refused this request.

I endorse the general principle of a party seeking to achieve a proportionate and reasonable and pragmatic resolution of a claim that might save time and costs. That said, it is fair to recognise that the solution the Claimant proposed would necessarily involve the Defendant having to accept the correctness of the Claimant’s interpretation of Regulation 7(2) of the 2015 Regulations, as compared with the interpretation that the Defendant and Interested Party submit is correct. Their argument is that the Ombudsman is simply not entitled, as a matter of law, to consider the underlying merits of the Claimant’s service complaint when deciding whether it is just and reasonable to exercise a discretion to consider the Claimant’s application for review out of time. This is the principal issue which falls for determination by this claim.

After the conclusion of the hearing, the Interested Party’s solicitors sent a letter to the Court dated 21 March 2024 drawing attention to delivery of a judgment of the EAT: Edwards v Ministry of Defence [2024] EAT 18, a case to which Mr Castle had referred at the hearing. That decision relates to the question of whether a statement of a person’s service complaint provides enough information to indicate whether the subject-matter of the complaint is one that could be pursued in an Employment Tribunal, for the purpose of creating the necessary jurisdiction for the Employment Tribunal over a matter potentially raised in the complaint for the purposes of section 121 of the Equality Act 2010 (a provision considered later in this judgment). The decision generally establishes that a statement of complaint should be construed in a purposive way, taking into consideration Parliament’s intention that the armed forces should have the ability to consider and determine complaints internally prior to any ultimate resort to litigation. I am grateful to the Interested Party for bringing the outcome of that case to my attention. I also note and agree with the shared intention of the Claimant and Interested Party that any employment matters that arise in respect of this claim remain a matter for determination by the Employment Tribunal in the proceedings between those two parties. I have sought not to trespass into any matter that is more properly a matter for determination by the Employment Tribunal.

Part 14A of the Armed Forces Act 2006 (“the AFA 2006”) provides for the making and determination of “service complaints” by those, like the Claimant, who are or were subject to service law.

Section 340A of the AFA 2006 sets out the basic entitlement to make such a “service complaint” as follows:

“(1)

If a person subject to service law thinks himself or herself wronged in any matter relating to his or her service, the person may make a complaint about the matter.

(2)

If a person who has ceased to be subject to service law thinks himself or herself wronged in any matter relating to his or her service which occurred while he or she was so subject, the person may make a complaint about the matter.

(3)

In this Part, “service complaint” means a complaint made under subsection (1) or (2);

(4)

A person may not make a service complaint about a matter of a description specified in Regulations made by the Secretary of State.”

Section 340B(1) empowers the Defence Council to make service complaints regulations about the procedure for making and dealing with a service complaint.

Section 340B(2) stipulates that the service complaints regulations must make provision:

“(a)

for a service complaint to be made to an officer of a specified description;

(b)

about the way in which a service complaint is to be made (including about the information to be provided to the complaint);

(c)

that a service complaint may not be made, except in specified circumstances, after the end of the specified period

“Specified” means specified in the Regulations.”

Section 340B(3) of the AFA 2006 identifies that the specified period referred to in section 340B(2)(c) must be at least three months beginning from the day on which the matter complained of occurred.

Section 340B(4) of the AFA 2006 further stipulates that the service complaints regulations must make provision:

“(a)

for the officer to whom a service complaint is made to decide whether the complaint is admissible and to notify the complainant of that decision;

(b)

for the Service Complaints Ombudsman, on an application by the complainant, to review a decision by the officer to whom a service complaint is made that the complaint is not admissible;

(c)

for securing that the Ombudsman’s decision in relation to admissibility, on such a review, is binding on the complainant and the officer to whom the complaint was made.”

Section 340B(5) of the AFA 2006 identifies that for the purposes of section 340B(4) a service complaint is not admissible if:

“(a)

the complaint is about a matter of a description specified in regulations made under section 340A(4),

(b)

the complaint is made after the end of the period referred to in subsection (2)(c) and the case is not one in which the circumstances referred to in that provision apply, or

(c)

the complaint is not admissible on any other ground specified in service complaints regulations.”

Section 340B(6) of the AFA 2006 identifies:

“(6)

Nothing in this Part with respect to the provision that must or may be made by service complaints regulations is to be taken as limiting the generality of subsection (1).”

It can be seen from these statutory provisions in the primary legislation that they envisage that service complaint regulations will make provision for what may be the subject of a service complaint, and for the time limits governing the making of such a service complaint. The relevant specified officer will then have the function of determining the admissibility of the complaint against those regulations, but subject to review by the SCOAF on an application by the complainant.

The role of the SCOAF in this respect is distinct from other statutory functions it is given in the AFA 2006, including in particular those set out in section 340H of the AFA 2006. Section 340H and the subsequent provisions set out the SCOAF’s role in specific circumstances, and accompanying powers, to investigate: (1) a service complaint after it has been finally determined; (2) allegations of maladministration in the handling of a service complaint after it has been finally determined; (3) allegations of undue delay in the handling of a service complaint which has not been finally determined; and (4) an allegation of undue delay in the handling of a relevant service matter. The Defendant, and the Interested Party in particular, rely upon the different nature of those functions, and specified powers, as compared with the more limited review role of the SCOAF of admissibility decisions under section 340B of the AFA 2006.

The 2015 Regulations are the relevant service complaints regulations for the purposes of section 340A and 340B of the AFA 2006. They variously set out matters that the relevant provisions of the AFA 2006 either permit or require to be specified in regulations. Thus, for example:

As to Regulation 4 and the procedure for making a service complaint, Regulation 4(1) identifies that a service complaint is made by a complainant making a “statement of complaint” in writing to the specified officer.

Regulation 4(2) sets out the required contents of such a statement of complaint. It includes the following requirements:

“(2)

The statement of complaint must state-

(a)

how the complainant thinks himself or herself wronged;

…

(c)

whether any matter stated in accordance with sub-paragraph (a) involved discrimination, harassment, bullying, dishonest or biased behaviour …

(d)

if the complaint is not made within the period which applies under regulation 6(1), (4) or (5), the reason why the complaint was not made within that period;

(e)

the redress sought; and

(f)

the date on which the statement of complaint is made.

…

(5)

In this regulation, “discrimination” means discrimination or victimisation on the grounds of colour, race, ethnic or national origin, nationality, sex, gender reassignment, status as a married person or civil partner, religion, belief or sexual orientation, and less favourable treatment of the complainant as a part-time employee.”

As already noted, the EAT’s decision in Edwards averts to the purposive approach to be adopted to the contents of a statement of complaint under this statutory regime.

As to Regulation 5, and action to be taken on receipt of a service complaint in relation to admissibility, Regulation 5(1) of the 2015 Regulations identifies the duty of the specified officer to make a decision on admissibility:

“(1)

After receipt of a statement of complaint, the specified officer must decide whether the complaint is admissible in accordance with section 340B(5).”

Regulation 5(2) of the 2015 Regulations makes further provision as to admissibility as follows:

“(2)

For the purposes of section 340B(5)(c), a service complaint is not admissible if-

(a)

the complaint does not meet the requirements of whichever of section 24(1) and (2) applies to the complainant; or

(b)

the complaint is substantially the same as a complaint brought by the same person which has either been decided previously under the service complaints process or is currently being considered under the service complaints process.

Regulations 5(3) and (4) of the 2015 Regulations set out a requirement to notify a complainant as to the specified officer’s decision on admissibility. They provide:

“(3)

If the specified officer decides that any part or all of the service complaint is admissible, he must notify the complainant in writing of the decision and refer that part or all of the service complaint to the Defence Council.

(4)

If the specified officer decides that any part or all of the service complaint is not admissible he must notify the complainant in writing of the decision, giving the reasons for the decision and informing the complainant of his or her right to apply for a review of the decision by the Ombudsman.”

Regulation 6 of the 2015 Regulations deals with the relevant time limits for making a service complaint. These vary depending upon what is being alleged (a variation of potential relevance to the Claimant’s case here). There is a general three month time limit, but for a matter alleging discrimination that could be pursued as a claim under Chapter 3 of Part 9 of the Equality Act 2010, a longer period of six months is identified. The specified officer also has a discretion to consider service complaints made out of time if, in all the circumstances, the specified officer considers it “just and equitable” to do so.

Thus Regulation 6 provides (so far as material):

“(1)

Subject to paragraphs (4) and (5), a person may not make a service complaint after three months beginning with the relevant day.